Foo and Li (A Firm) v. Kam Chiu Fei

HCA010536/1983

BETWEEN:-

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Coram: The Honourable Mr. Justice Penlington in Court

Date of hearing: 18th February 1985

Date of delivery of hearing: 18th February 1985

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JUDGMENT

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1. This is a claim brought by Messrs. Foo And Li a firm of solicitors in respect of costs incurred in connection with a criminal case. The main item in the bill which has been rendered is the fee paid to Mr. A.M. Niamatullah who was retained as counsel. There is no doubt that as the solicitors instructing the plaintiffs are, by the code of conduct laid down between solicitors and barristers, personally liable to pay his fee.

2. Mr. Foo has given evidence of interviewing the defendant on the 6th April at Lai Chi Kok Reception Centre. as a result of being asked to do so by a lady who said that she was the defendant's sister. In his affidavit the defendant said that is not so but I do not think that is of any significance. I am satisfied that a discussion took place and Mr. Niamatullah's name was mentioned as counsel and that the defendant agreed that he should be approached. Mr. Foo says that having discussed the matter eventually with Mr. Niamatullah, having regard to the committal papers and the likely length of the trial Mr. Niamatullah said that his fee would be $120,000. Mr. Foo told the defendant that his fee would be $40,000, a total of $160,000. There was nothing in writing signed by the client as to agreeing to that amount. Mr. Foo says that, he did so verbally and on the basis of that a marked brief was sent to Mr. Niamatullah.

3. The Guide to the Professional Conduct of Solicitors issued by the Counsel of the Law Society says that regard to costs:-

"General Principles. When a solicitor is discussing with his client at the outset of the matter in which he is to be retained, the work likely to be involved and other factors such as the likely outcome and the time to be taken, the solicitor would be well advised, although there is no professional obligation for one to do so, to ensure that the client fully understands the position of their costs and that the position is properly recorded.".

I can only say that I consider that is particularly good advice which should always be followed in a jurisdiction where, when one is discussing with the client things such as the "vine formula" and the effect of briefing counsel one is not dealing with persons who would readily understand. It is essential in my view that not only does the client fully understand but that a written record is made. That was not done here. I sincerely trust that it is done in all cases in future.

4. Mr. Foo said that he saw the client on several occasions after this with Mr. Niamatullah and he also gave evidence that a copy of a letter sent to Mr. Niamatullah advising him that he was being retained was sent to the Supreme Court, to the Attorney General and the client. The defendant therefore must have been aware that Mr. Niamatullah had been retained. There is naturally nothing in that letter as to the fees payable.

5. I need not go into the full history of what happened after that. There were discussions as to the payment of money which eventually came to nothing and shortly before the trial was due to start instructions were withdrawn from counsel, who sent a fee note and a bill of costs was sent to the defendant. That bill was accompanied by a letter which advised him of his right to have the bill of costs taxed. I am satisfied that letter was received because the defendant was at that stage still in Lai Chi Kok Reception Centre. He did not avail himself of the opportunity to have the bill taxed. Over a year has now lapsed and according to the Law Practitioners Ordinance, it is only an exceptional circumstance that the client could seek taxation. He does not in fact do so and indeed has not appeared at the hearing of this matter. The solicitors which whom he originally instructed obtained leave to withdraw.

6. I naturally accept Mr. Foo's evidence as to what took place. It was unfortunate that there was no written confirmation from the client by means of a short note, which could have been on the back of the file, as to the agreed amount payable to Mr. Niamatullah and to Mr. Foo's firm. That would unquestionably have avoided any question whatever as to whether Mr. Niamatullah and Mr. Foo had been retained on an agreed fee by the defendant. I am however satisfied that the defendant did agree to pay these fees and is liable for them. There will be judgment for the plaintiff for the sum of $77,660. The plaintiff to have interest on that amount at 12% from the 22nd June 1983 to to-day. The plaintiff is entitled to its costs.

Representation:

William P.K. Lee (Foo And Li) for the Plaintiff.

Kam Chiu Fei, Defendant, absent.